• Third Party Custody: Does a parent lose constitutionally protected status by signing a consent custody order granting custody rights to a non-parent?

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    It is now well established that a parent has a constitutional right to exclusive care, custody and control of his or her child. This constitutional right protects a parent against claims for custody by non-parents. A court cannot apply the best interest of the child test to determine whether a non-parent should have custody of a child unless the court first concludes that the parent has waived her constitutional right to exclusive custody. A parent waives her constitutional right by being unfit, neglecting the welfare of the child, or by conduct otherwise inconsistent with the parent’s protected status. There is no precise definition of conduct inconsistent with protected status and our appellate courts have provided no comprehensive list of actions that will result in a parent’s loss of constitutional rights. Instead, whether a parent’s conduct has been inconsistent with protected status is an issue that must be determined on a case-by-case basis. The non-parent seeking custody has the burden of proving the parent’s inconsistent conduct by clear, cogent and convincing evidence. For more detail on this law, see Family Law Bulletin, Third Party Custody and Visitation Actions.

    What if a parent signs a consent custody order that grants custody rights to a non-parent third party? Does the parent lose the ability to assert her constitutional right to custody in subsequent custody proceedings? For example, if a parent agrees to a court order granting custody to grandmother, does the parent have the constitutional right to regain custody from grandmother in the future? Or, if another non-parent wants custody or visitation after parent has entered into a consent custody order with grandmother, does the other non-parent still need to prove parent has waived her constitutional right to custody and, if so, can the non-parent rely on the fact that parent voluntarily gave custody to the grandmother to establish that the parent acted inconsistent with her protected status?

    Modification of Order Granting Custody to Non-Parent

    Regarding the first scenario, the answer has been clear for some time. The court of appeals consistently has held that the constitutional rights of parents are considered only in an initial custody proceeding between a parent and a particular third party. According to the court, GS 50-13.7 sets out the exclusive process for modification of a custody order; the constitutional rights of parents play no role in that process, even if the initial order granting custody to the non-parent did not contain a conclusion that the parent had waived her constitutional right to custody. Instead, the party seeking modification, even if it is the parent seeking to regain custody, has the burden to show there has been a substantial change in circumstances. If there has been a substantial change, the court then applies the best interest of the child test to determine the new custody arrangement. See Bivens v. Cottle, 120 NC App 467 (1995); Speaks v. Fanek, 122 NC App 389 (1996); and Warner v. Brickhouse, 189 NC App 445 (2008).

    So in the first scenario above, the parent does not have a constitutional right to regain custody from grandmother after parent has signed a consent custody order giving grandmother custody rights.

    Another Third Party Seeks Custody

    However, the court of appeals recently held that the analysis is different when the subsequent custody proceeding is initiated by a non-parent other than the non-parent who received custody in the initial custody order. In Weidman v. Shelton v. Wise, NC App. June 7, 2016, the court of appeals upheld the trial court’s decision to dismiss the non-parent claim for custody after concluding that the mother of the child had not waived her constitutional right to exclusive custody when she entered into a consent order granting another non-parent sole custody of the child.

    In Weidman, the mother of child, Erin Shelton, signed a consent custody order giving her mother, Dawn Weideman, exclusive custody of the child. Following the entry of that consent order, Wise requested to intervene in the custody proceeding and requested custody. Wise claimed that the mother’s act of signing the consent order granting exclusive custody to Weideman was conduct inconsistent with her protected status. Wise argued that because mom had signed the consent order, the trial court could apply the best interest of the child test to determine whether to grant Wise’s request for custody rights to the child.

    Findings of fact made by the trial court indicated that Shelton had a history of untreated mental health issues that had caused her to “self-medicate” with drugs and alcohol. As a result, she had experienced times when she was unable to care for her minor child. During those times, she had relied on both Weideman and Wise to care for the child. At one point, Shelton signed a “Guardianship Agreement” purporting to grant guardianship rights to both Weideman and Wise. That agreement specified that the parties all intended for the guardianship be temporary. Following the execution of the Guardianship Agreement, further problems arose and Wise refused to allow Shelton access to the child when the child was in Wise’s care. Weideman, however, encouraged interaction between Shelton and the child. In 2012, Wiedeman filed a Chapter 50 custody proceeding and a consent order was entered between Wiedeman and Shelton granting Wiedeman sole custody of the child. Both testified that this consent custody order was intended to be a “temporary arrangement” and that Shelton believed Weideman would return custody to her when she was ready to parent her child. Shelton believed the custody order would keep the child in the care of Wiedeman who, unlike Wise, would allow Shelton to have access to her child.

    According to the court of appeals, a parent who cedes all or a portion of her custody rights to a third party without intending that the arrangement be temporary has acted inconsistent with her protected status and has waived her constitutional right to custody. However, a temporary relinquishment alone is insufficient to establish that a parent has acted inconsistent with her protected status. Because the trial court found that Shelton did not intend for the custody order to grant permanent custody to Wiedeman and that she believed the custody order was the only way to be sure she had the opportunity “to assume her role as [the child’s] mother in the future,” the court of appeals held that it was proper for the trial court to dismiss Wise’s claim for custody.



    Cheryl Howell is a Professor of Public Law and Government at the School of Government specializing in family law.

    3 thoughts on “Third Party Custody: Does a parent lose constitutionally protected status by signing a consent custody order granting custody rights to a non-parent?”

    • Denise Lockett says:

      Great synopsis on third-party consent orders’ effects on the constitutional protections normally afforded a parent. I have seen several instances in which the absent/uninvolved/”unknown” (although usually they are) fathers are not even named by the attorney who files the third-party custody pleading; what is the best approach when a mother now wants to file a Motion in the Cause to modify this unholy mess?

    • Valeria Cesanelli says:

      Hi Denise….If you are still wondering about this subject, I have a recently entered order by Judge Worley dealing with the absence of the father in the 3rd party lawsuit (case is extremely complicated but for what opposing party, the court and myself have researched, it was a case of first impression for the court).

    • Rod J Benfield says:

      Here is a twist to a third party or Interveners custody attempt. I am the Father of the Children’s Dad. My wife is the Mother of children’s Mom.
      My son has been a no-show. Learning of our being allowed to intervene. We had children living with us on and off for 11 years. Min time being 6 months. Max 26 months. Which durrThe mother who resided with her BF. BF slapped 19-month-old grandson. Reported by his older brother age 7. Which was confirmed by ten yr Granddaughter? Mothers BF was found to have committed abuse. Once the mother learned of the children, the report made. My call to DSS. She took the kids. And we never saw them until being allowed to intervene. This custody case has many spins. Those shadows and sealed lips, Treats have been an ongoing pattern. The second court appearance we had for visitation rights. The Courts had allowed both parties to have 30 days to have access to a DSS file on all three children. One call I made held nothing to the horror reports made. Each time a child made a report. We DSS contacted parents of a home visit. Childs story had changed.
      Once the parents learned of our attempt to intervene they both jumped to sign a parental agreement. To deny us are slim to none chance. This being done on the same day. Parents wherein a closed case we lost an opportunity to seek even visitors. The Way our children had played this custody agreement seemed to have the courts eyes look hard at the File, and the parents combined action.
      My Son told me we would never see the children again. Once we were allowed as interveners. He has not appeared in past two court dates. Dead Beat and has never taken Responsibility for anything in 33 years. I am not that Man who people see and ask how my children are doing. I speak it as they do it.
      We have visitation consent order. After another full summer and every other weekend split holidays with the mother. We learned her New BF. Has spent 22 months of having full access to abuse the boys. I am a Retired Marine. A that is enough said. I come real and with facts to support the claim. The Boys have been spanked until they bruised. Had BF jerk them up by arms now strangle the now ten yr. He even admitted it in an attempt my wife made to confront them. Only after the attempt went sideways. He was supposed to be on medications according to the children. And The Bride was told by the babies mom the same. And for no apparent reason. Until Aug 8. The Boys sang for three days. And as always I allowed my Bride to attempt to rectify the condition.
      That was only another display of DV on my behalf. My words cut when spoken and are loud. I am never above or do I have a different standard than the laws order everyone to abide by. I am tired of the swearing in process. It’s not this country’s way of life any longer. It’s not about god or swearing. Integrity can be compromised, Traded for anything. It’s all a trade off in my eyes. And I am not going to let the perjury issues left unturned. I am not hiring an attorney on this trip. 18 grand to face the same old thing. Has left many questions on the system.
      I have two grandsons living in a home. Which was outlined in the court’s CD recording she was not to be there with the children. I just asked why are the courts have no priority custody cases to be heard? I have just finished parenting under two roofs class. It was a court requirement before I was able to proceed filing content and substantial change in circumstances modification for custody.
      Can I file both contempt and modification at once? On the same day. One after another?
      The way the children’s parents came together. Once my Bride and I transferred back from Hawaii. We allowed them to return to NC to share time with our parents. The spent time and my Brides Mothers. It’s colorful. And the Babies have got to have stability and a home. I never knew our daughter would allow her children to be subjected to this. She has never been a good mother. Now she has proven she has no desire even to try. Her BF isn’t in jail because the police officers need to have a statement from him?

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